2023 (9) TMI 1238 - HC - GST

Refund of IGST - zero-rated supplies - Applicability of circular with retrospective effect - rejection on the ground that since the Petitioner has opted for higher duty drawback by mentioning Tariff Code 3907-A, the Petitioner has given up its right to claim the refund of tax paid under IGST Act - HELD THAT - It is not disputed that the duty drawback rate under HSN Code 3907-A and 3907-B is same and therefore it is not a case of higher duty drawback. Secondly, the CHA in his affidavit has admitted the mistake in preparing the shipping bills on which instead of mentioning 3907-B, they have mentioned 3907-A. There is no rebuttal to the said averment of the Petitioner by the Respondents. The Circular on which reliance is placed by the Respondents is dated 9th October, 2018, whereas the export was made on 25th July, 2017 and 5th September, 2017, which is much before the date of Circular. It is a settled position that the circular cannot be made applicable retrospectively. Even otherwise, the circular proceeds on a footing of claim of higher duty drawback and not where the rate of drawback is same and further more the circular also dose not deal with the rectification of mistake if suffix (A) is mentioned instead of suffix (B), while mentioning the HSN Code, which the facts in the instant case. This Court in an identical facts/situation in the case of SUNLIGHT CABLE INDUSTRIES VERSUS THE COMMISSIONER OF CUSTOMS NS II AND 2 ORS. 2023 (7) TMI 160 - BOMBAY HIGH COURT , faced with a similar situation allowed the claim of refund by observing the Petitioner is entitled to a refund of the IGST paid on the exports in question, as it is certain that this is not a case where the Petitioner is availing any double benefit that is of the IGST refund and a higher duty drawback. The Respondents are directed to refund of Rs. 17,04,127/- to the Petitioner the IGST paid in respect of the zero rated supply under shipping bills in question alongwith interest as per the IGST Act - Petition allowed.

Summary

Issues involved:
The issue involves a petition under Article 226 of the Constitution of India seeking a refund claim on account of zero-rated supplies under the IGST Act.

Summary:
1. The petitioner, engaged in manufacturing Polyester Resin, exported consignments in 2017 with a mistake in the HSN Code mentioned in the shipping bills.
2. The petitioner claimed a refund of IGST for the exports treated as zero-rated supply, but the refund was denied based on Circular No. 37 of 2018.
3. The petitioner sought permission to rectify the HSN Code error, but no response was received from the authorities.
4. The petitioner argued that the duty drawback rates for the incorrect and correct HSN Codes were the same, and the error was admitted by the Custom House Agent (CHA).
5. The respondents contended that the petitioner had consciously availed a higher rate of duty drawback, as per the circular, relinquishing the right to claim the refund.
6. The High Court found that the duty drawback rates were the same for both HSN Codes and that the circular could not be applied retrospectively.
7. Relying on previous decisions, the court allowed the petition, directing the respondents to refund the IGST amount with interest to the petitioner.

Conclusion:
The High Court of Bombay allowed the petition, directing the respondents to refund the IGST amount of Rs. 17,04,127 to the petitioner for zero-rated supplies, along with interest as per the IGST Act, within two weeks of receiving the court order.